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NY Environmental Section Enforcement Update May 2013, #5

By Michael J. Lesser, Environmental Section, NYSBA © 2013

Enforcement News

Evolution of an Asbestos Enforcement Case

Asbestos regulation has always been one of the most ubiquitous yet confusing areas of environmental enforcement because oversight and enforcement cut across a number of federal, state and local regulatory schemes. These various schemes can address asbestos as a waste product, a hazardous substance, an air pollutant or a water pollutant (or all of the above). Furthermore, asbestos regulation can arise from abatement during construction or demolition, transportation or unlawful and unreported disposals and releases. A recent Times Union story infers many of the above issues and Envirosphere will continue to follow this story as it develops.

To start deciphering the mysteries of asbestos regulation see the NYSDEC asbestos webpage and then follow the related links to other federal, state and local agencies.

A.G. Schneiderman Launches New Animal Protection Initiative

Attorney General Eric T. Schneiderman has commenced a new Animal Protection Initiative aimed at shutting down criminal animal fighting rings, ensuring compliance with New York State's Pet Lemon Law and charging those who abuse or neglect animals. The new initiative will use civil and criminal remedies to target allegations of animal cruelty and unscrupulous sales of pets and other animals.

The Initiative will employ the OAG's Regional Offices, the Consumer Fraud Bureau, the Criminal Prosecutions Bureau, the Organized Crime Task Force and the Investigations Bureau.

Enforcement People in the News

A.G. Schneiderman Appoints New Executive to Oversee Environmental Protection

Attorney General Eric T. Schneiderman appointed Alvin L. Bragg, Jr. to serve as Executive Deputy Attorney General for Social Justice. He will oversee six bureaus, including Charities, Labor, Civil Rights, Tobacco Compliance, Healthcare and Environmental Protection. Mr. Bragg was formerly an Assistant United States Attorney in the United States Attorney's Office in New York's Southern District where he investigated and prosecuted white collar and street crimes. He also served with the New York City Council as the Chief of Litigation and Investigations.

Assistant Attorney General Ignacia S. Moreno Departs from the U.S Department of Justice

Ignacia S. Moreno, Assistant Attorney General of the Environment and Natural Resources Division, will be leaving the DOJ in June 2013. Attorney General Eric Holder lauded Ms. Moreno for her Division's many record setting accomplishments under her tenure.

Federal Enforcement News

U.S. Attorney for NDNY Cracks Down on Power Wash Runoff

The indicted parties in this matter are principles of a company that engaged in hydro-demolition. This is a procedure that uses high pressure water to remove concrete from buildings during demolition. However, the waste runoff generated by the hydro-demolition process can consist of a slurry of high PH industrial waste including concrete wastes.

Unfortunately, this toxic slurry was allegedly released from a Binghamton area demolition site into the nearby Susquehanna River. In turn, this led to multiple felony indictments for discharging untreated industrial waste-water from a hydro-demolition process without a permit in violation of the Clean Water Act. Several federal, state and local agencies collaborated in the investigation.

Hydro-demolition can now be added to the list of industrial practices likely to need regulatory supervision under the CWA and related state laws.

NYC Department of Environmental Protection News

NYCDEP Takes On Idling Vehicles

The NYC Department of Environmental Protection commenced a crackdown on vehicle idling near schools and in neighborhoods with high numbers of trucks and buses. DEP inspectors will begin targeted enforcement of Local Law 5, which was enacted in 2009 and limits idling in school zones to one minute. Drivers observed illegally idling will be issued a warning for a first offense and a $350 fine for subsequent offenses.

NYSDEC's state idling diesel regulations provide a good comparison.

NYCDEP Requires Dry Cleaners to Disclose Chemicals

The New York City Department of Environmental Protection (DEP) announced that dry cleaners will be required to post the primary chemicals used in the dry cleaning process. The approximately 1,400 dry cleaners in New York City will be required to list the chemicals and a link to information about their health effects beginning in February, 2014. The DEP has created a template of the disclosure form.

Most dry cleaners use perchloroethylene or "perc," which is regulated by Federal, State, and City governments as exposure to perc vapor can have negative health effects. Non perc alternatives must also be disclosed. Dry cleaners will have to fill out and print the applicable forms from the DEP website and post these in their business. The draft form for perc dry cleaners and non-perc dry cleaners have been made available.

NYSDEC Consent Orders, Administrative Orders and Rulings

In the Matter of Pile Foundation Construction Company Inc., et al.
Commissioner's Order, May 17, 2013
DEC File No. R2-20090406-241

The good news for Respondents in this DEC Region 2 water pollution-wetlands case was that they were found not liable for certain compliance schedule violations arising from the Department's enforcement of an earlier 2009 Order on Consent. The bad news however was that they were found jointly and severally liable for a civil penalty of $500,000.00 (partially suspended).

The trend that stands out in this matter is the Department's expanding use of the administrative Motion for an Order without Hearing (6 NYCRR 622.12)  to prosecute major violations of existing administrative Orders on Consent. In past years, the practice was for NYSDEC to refer such violations to the Environmental Protection Bureau of the Attorney General's Office which would then commence a civil enforcement action in state supreme court to enforce the terms of the underlying Order. Here, rather than wait for a court determination, the NYSDEC has moved forward administratively and added hefty civil penalties for violations of the Order to "encourage" compliance.

In the Matter of Beach
Administrative Ruling, May 3, 2013
DEC Case Number: R5-20121024-2023

Unlike the Pile Order above, here the Department's staff overreached with their Motion for a Part 622.12 Order without Hearing while trying to address what appears to be a complicated state land trespassing and real property law case. Apparently, there were too many unresolvable substantive issues and the summary motion was denied. However, pursuant to 6 NYCRR 622.12(e), staff's motion papers and respondent's responsive papers were deemed to be the complaint and answer, respectively, for the purposes of this proceeding. In an unusual but telling "suggestion" the parties were reminded that independent mediation services are available and encouraged through the Office of Hearings and Mediation Services.

While not often utilized, the NYSDEC Hearing's Office provides independent mediation services using trained (and free) mediators upon request. For more information about this service, contact the NYSDEC Office of Hearings and Mediation Services.

Weird But True News (Or, Did They Really Do That?)

US v. Wal-Mart

$110 million in total criminal fines in multiple jurisdictions is enough to get this blogger's attention even though this criminal case evolved outside of New York. The fines and compliance costs are especially staggering for a case that did not involve a massive oil spill or other traditional environmental quality violation. Simply put, Wal-Mart illegally mishandled, released and disposed of the garden chemicals routinely stored and sold via the lawn centers at its numerous retail locations.

Growing up deep in Long Island's suburbia, I can recall the rather casual garden center operations of the time. These places were sloppy at best with broken bags of fertilizers, herbicides and other nasty stuff spread all over. Cleanup was an after-thought. And when it rained, the mess ran off to groundwater (not storm sewers) and eventually to Great South Bay. So, I was surprised to learn that Wal-Mart thought that it was still operating by 1960's regulatory standards (and that state and federal regulators would not notice).

In any event, fertilizer and garden chemical handling are now worthy of a distinct regulatory oversight program. For more information on the state requirements for garden retailers, see New York's relatively new "Runoff Law" ECL Article 17, Title 21, the FAQ on Phosphates,  and the impact on commercial pesticide applicators are also available online.


NY Environmental Section Enforcement Update is a service presented by
the Environmental Section of NYSBA which is based on a general survey of
approximately twenty-five public government and media websites which
report on news relevant to New York's environmental issues. It is by no
means comprehensive and is presented for educational purposes only.
Neither the author nor NYSBA makes any guarantees as to the accuracy of
the sources cited. Please contact Sam Capasso, the Blog Administrator with any additional information or corrections.

Michael J. Lesser is currently Of Counsel to Sive, Paget &
Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in
the Office of General Counsel.

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This page contains a single entry from the blog posted on June 30, 2013 8:21 PM.

The previous post in this blog was NY Environmental Section Enforcement Update April 2013, #4.

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